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United States of America v. Christopher Finazzo and

February 19, 2013

UNITED STATES OF AMERICA,
v.
CHRISTOPHER FINAZZO AND DOUGLAS DEY, DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER ON EXPERT DISCLOSURE

Before the court is the Defendant Christopher Finazzo's request asking for a determination as to whether he is obligated to disclose potential expert testimony to the government under Fed. R. Crim. P. 16. (Doc. No. 150.) For the reasons that follow, Finazzo is ordered to disclose potential expert testimony pursuant to Rule 16(b)(1)(C).

BACKGROUND

The court assumes the parties' familiarity with the factual background and procedural history of the case, and will address only those aspects that are relevant to the instant request. On June 2010, counsel for Finazzo's co-defendant, Douglas Dey, requested from the government "a written summary of any expert testimony that the government intends to use under Rules 702, 703 and 705 of the Federal Rules of Evidence, or other rules pertaining to expert-witness testimony, during its case-in-chief at trial." (Ex. A to Def.'s Oct. 1, 2012 Letter Request (Doc. No. 150) at 7.) On June 28, 2010, the attorney for the government wrote to Finazzo's counsel and stated, "the government will comply with Fed. R. Crim. P. 16(a)(1)(G) by notifying you in a timely fashion of any expert the government intends to call at trial and by providing you with the expert's credentials and a summary of the expert's opinion." (Ex. B to Def.'s Oct. 1, 2012 Letter Request at 4.)

At a pre-trial conference on August 30, 2012, the court set a deadline of October 1, 2012 for the parties to make expert disclosures. (See Minute Entry Aug. 30, 2012.) On September 11, 2012, counsel for Dey wrote to counsel for the government and asked him to notify him whether the government intended to call an expert witness at trial, and reminded him of the government's disclosure obligations under Rule 16(a)(1)(G). As of October 1, 2012, the government had not provided any expert disclosures to Finazzo. Finazzo wrote to the court seeking the instant clarification. He noted that the government had not provided expert disclosures, and therefore, Finazzo was under no obligation to meet the court's October 1, 2012 deadline for doing so himself. (See Def.'s Oct. 1, 2012 Letter at 1.) In response to Finazzo's clarification request, the government answered that it did not intend to call any expert witnesses in its case-in-chief. (Govt.'s Oct. 5, 2012 Letter (Doc. No. 154) at 1.) The government then requested that the court order Finazzo to provide his expert disclosures to the government. (Id. at 2.) Finazzo countered that, despite the government disclosing that it did not intend to call an expert witness at trial, he is under no reciprocal obligation to provide expert disclosures to the government. (See Def.'s Oct. 8, 2012 Letter (Doc. No. 155) at 2.)

DISCUSSION

Federal Rule of Criminal Procedure 16 governs the disclosure and use of expert testimony in a criminal case. The rule provides, in pertinent part:

(a) Government's Disclosure

(1) Information Subject to Disclosure * * *

(G) Expert Witnesses. At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. . . . The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.

(b) Defendant's Disclosure

(1) Information Subject to Disclosure

(C) Expert Witnesses. The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the ...


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